"a sentence that is within the guideline range as determined by the Court at sentencing and the manner in which the sentence was determined on the grounds set forth in 18 U.S.C. § 3742 or any ground whatever, in exchange for concessions made by the United States Attorney’s office in this plea agreement, except that the Defendant may appeal on grounds preserved at sentencing, that the Court incorrectly determined the guideline range."
The Court concluded: "Vandewege has waived the issue he advances in this appeal: that his sentence is unreasonable because the district court denied his request for a downward variance from the guidelines range. The appellate waiver provision in Vandewege’s plea agreement waives his right to appeal any sentence within his guidelines range, except on grounds, preserved at sentencing, that the district court incorrectly determined the guidelines range."
At the resentencing (this appeal was the defendant's second), there were no objections to the revised advisory guideline range. The defense did make a request for a downward variance. It was the denial of such a variance that the defendant challenged on appeal. The Court found that the "appeal is waived."
The defense had argued "that the government ha[d] forfeited the waiver argument by failing to bring it in a motion to dismiss." The Court said it strongly encourages the government to file promptly any potential motions to dismiss in such cases. But it also pointed out that it
has not held "that the failure to file a motion to dismiss would result in forfeiture of the right to rely on an otherwise valid waiver of appeal." The Court declined to so hold here.